Citation Nr: 18101312
Decision Date: 05/03/18 Archive Date: 05/03/18
DOCKET NO. 17-14 549
DATE: May 3, 2018
ISSUES
1. Whether new and material evidence has been received to reopen the claim for service connection for low back strain with degenerative changes (claimed as herniated nucleus pulposus and back condition).
2. Entitlement to service connection for low back strain with degenerative changes (claimed as herniated nucleus pulposus and back condition).
3. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss.
4. Entitlement to a disability evaluation in excess of 30 percent for residuals, status post myocardial infarction with history of coronary artery disease, to include on an extraschedular basis.
ORDER
The application to reopen the claim for entitlement to service connection for low back strain with degenerative changes (claimed as herniated nucleus pulposus and back condition) is granted.
Entitlement to service connection for low back strain with degenerative changes (claimed as herniated nucleus pulposus and back condition) is remanded.
Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss, is denied.
Entitlement to a disability evaluation in excess of 30 percent for residuals, status post myocardial infarction with history of coronary artery disease, to include on an extraschedular basis, is denied.
FINDINGS OF FACT
1. A July 27, 1987 rating decision denied service connection for low back strain with beginning degenerative changes claimed as herniated nucleus pulposus. The Veteran was notified of his rights, but did not express timely disagreement or submit new evidence within one year. That decision became final.
2. The evidence associated with the claims file subsequent to the July 27, 1987 rating decision addresses an evidentiary defect necessary to substantiate the underlying claim of service connection for low back strain with degenerative changes (claimed as herniated nucleus pulposus and back condition) and raises a reasonable possibility of substantiating the claim.
3. Tinnitus is not causally or etiologically related to service and did not manifest within one year of the Veteran’s discharge from service.
4. Tinnitus is not caused or aggravated by a service-connected disease or injury.
5. For the period on appeal, the Veteran’s residuals, status post myocardial infarction with history of coronary artery disease has been manifested by reports of fatigue, with a LVEF of 60.4 percent and a METs level greater than 7-10.
6. For the entire period on appeal, the Veteran’s residuals, status post myocardial infarction disability picture was adequately contemplated by the rating schedule.
CONCLUSIONS OF LAW
1. New and material evident sufficient to reopen the claim for service connection for low back strain with degenerative changes (claimed as herniated nucleus pulposus and back condition) has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).
2. Tinnitus was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not proximately due to, the result of, or aggravated by a service connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017).
3. The criteria for an evaluation in excess of 30 percent for residuals, status post myocardial infarction with history of coronary artery disease have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.104, 4.3, Diagnostic Code 7006 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Marine Corps from August 1961 to April 1985. His medals include the Combat Action Ribbon, Navy Achievement Medal with combat “V” and one gold star, and the Meritorious Unit Commendation Medal with one star.
This matter is before the Board of Veterans Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
The issue of entitlement to service connection for low back strain with degenerative changes (claimed as herniated nucleus pulposus and back condition) is addressed further in the Remand section below.
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017).
In the April 2018 Informal Hearing Presentation (IHP), the Veteran and his representative asserted, “The appellant was not furnished a Department of Veterans Affairs examination.” Upon a review of the record, it appears that the Veteran was furnished with a VA examination in April 1987 before the prior final denial in July 1987. Nevertheless, the Board has considered this request related to VA’s duty to assist as discussed below.
The Veteran in this case has not referred to any other deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).
The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).
Service Connection
1. Finality of Service Connection Claim.
Service connection for low back strain with beginning degenerative changes claimed as herniated nucleus pulposus was denied in a July 27, 1987 rating decision. The implicit denial was for a low back disability. The Veteran was informed of the decision and of the right to appeal. He did not appeal or submit new and material evidence within one year of notification. That decision is final. Upon the receipt of private and VA treatment records, the issue was revisited in a February 2015 rating decision.
At the time of the July 1987 rating decision, the record included the findings of an April 1987 VA examination and the service treatment records. The July 1987 rating decision found in part, “Current VA examination shows essentially normal clinical examination, however, x-rays shows some beginning degenerative changes.” There was evidence of low back pain in service in 1979, but this was found to have resolved and no recurrence was shown. There was also no evidence of a nexus to service.
However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a).
The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id.
In March 2014 VA received the application to reopen the claim of service connection for a back condition. The additional evidence presented includes private and VA treatment records. The evidence shows impressions of and treatment for degenerative changes of the lumbar spine. A May 12, 2015 private treatment record entitled Daily Note from Peak Performance Sport and Physical Therapy shows impressions of and ongoing treatment related to lumbago and cervicalgia. In the May 2015 Notice of Disagreement (NOD), the Veteran reported that although he retired and registered for medical care through VA, he had largely self-medicated this condition since service. As a lack of evidence supporting the presence of a disability was one of the bases for the previous denial of the claim, this evidence is new and material under 38 C.F.R. § 3.156.
In light of this new and material evidence, the Veteran’s claim of service connection for low back strain with beginning degenerative changes claimed as herniated nucleus pulposusis reopened.
2. Entitlement to service connection for tinnitus, as secondary to bilateral hearing loss.
A. Service Connection
To establish service connection a Veteran must generally show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).
For certain chronic diseases, to include organic diseases of the nervous system, including sensorineural hearing loss and tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a).
For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b).
Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b).
VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
B. History
One of the Veteran’s DD-214s shows his specialty number and title as “0311 Rifleman.” A later DD-214 shows his specialty as “0211 Counter-IntellAssist.” A later DD-214 shows “0211 CIAsst.” Another related DD214 shows that he was a “0210 Counter Intelligence Officer for 9 years and 3 months, from June 1975 to April 1985.
The Veteran’s retirement examination from February 1985 shows that the ears – general and drums were clinically normal. In a related Report of Medical History, the Veteran denied wearing a hearing aid. He indicated “don’t know” under hearing loss. He wrote a notation showing “mild HFHL [high frequency hearing loss] – & Tinnitus.” The Veteran also wrote that his usual occupation was as a “Security Officer / Terrorist Analyst DIA.”
An April 27, 1987 VA examination shows “hearing within normal limits bilaterally.”
The Veteran was afforded a January 2015 VA examination. The Veteran had clinical hearing loss in both ears, with the right ear not meeting the criteria to be considered a disability for VA purposes. The VA examiner reviewed the entire claims file, including the Service Treatment Records (STRs). The VA examiner opined, “This evidence suggests a post service etiology for the claimant’s current hearing loss.” The VA examiner found that the Veteran reported recurrent tinnitus. The Veteran reported first noticing ringing about a year or so ago, or about 28 years after service. The VA examiner opined that the Veteran had clinical hearing loss, and his tinnitus is at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. Additionally, the VA examiner opined:
It is the opinion of the examiner that the claimant’s current tinnitus was less likely than not incurred in or caused by noise exposure in military service. Claimant reports duty as a counter-intelligence specialist and officer. This service is partially supported by his DD214 dated 6/17/65. He reports that is tinnitus began about a year ago, or about 28 years after leaving the service. Noise related tinnitus does not exhibit this delayed onset. This suggests that his tinnitus may be related to his increasing hearing loss, and less likely than not associated with service connected noise exposure.
In short, the VA examiner found that the etiology of the tinnitus is at least as likely as not associated with hearing loss.
In the May 2015 Notice of Disagreement, the Veteran contends, “Because of my exposure to harmful noise I have ringing in my ears.”
In the March 2017 VA Form 9, the Veteran contends in part:
I also believe that my tinnitus should have been service connected. Your examiner reported that I stated the tinnitus did not start until 28 years after my service, but this is untrue. I have had tinnitus for many more years and never stated that it started so recently. Also the tinnitus has existed well before my hearing loss was diagnosed and shouldn’t be considered as related to my hearing loss.
In the April 2018 IHP, the Veteran and his representative asserted in part, “The Hearing Loss and Tinnitus examination conducted on January 15, 2015, noted findings of tinnitus. The examiner checked the box that indicated the appellant’s diagnosed tinnitus was at least as likely as not a symptom associated with the hearing loss.” They argue that service connection should be established based upon the evidence of record.
C. Analysis
The Veteran contends that he has tinnitus due to in-service noise exposure. As an initial matter, in the March 2017 VA Form 9, the Veteran clarified that he does not wish for tinnitus to be considered as secondary to hearing loss. The Veteran is not service connected for bilateral hearing loss. Service connection for bilateral hearing loss was denied in the July 1987 rating decision. As such, the Board will not further address service connection on a secondary basis. 38 C.F.R. § 3.310 (b). The Board’s inquiry will focus on the Veteran’s contention that tinnitus existed before his hearing loss, and is related to service on a direct or presumptive basis.
The Board notes the Veteran is competent to report that he had tinnitus after service. Nevertheless, a review of the entire record finds a preponderance of the evidence weighs against a finding that the Veteran’s tinnitus had its onset in service. More specifically, tinnitus, to include an organic disease of the nervous system, was not “noted” during service. Furthermore, based upon the normal findings, the Veteran did not have characteristic manifestations sufficient to identify a chronic disease entity during service, and there is no credible proof of tinnitus from within one year of separation.
The Veteran is competent to relate what he has been told by a professional. He is also competent to report ringing in the ears. Here, there are impressions or diagnoses of tinnitus. The Veteran is competent to relate such facts. However, as to the specific issue of its onset and etiology, tinnitus falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F. 3d at 1377.
In light of the April 27, 1987 VA examination from shortly after discharge indicating normal hearing, as well as the January 2015 VA examination (confirming “that the claimant’s current tinnitus was less likely than not incurred in or caused by noise exposure in military service”), the general claim that the Veteran’s tinnitus began during service or immediately thereafter is outweighed by the probative medical evidence of record. Here, the January 2015 VA examination, prepared by a skilled professional, is more probative and more credible than the lay statements advanced in support of his claim for benefits.
The most probative evidence is the January 2015 VA examination reports opining that the Veteran’s tinnitus is not related to in-service noise exposure. It is most probative, as it is based on a review of the Veteran’s STRs, in particular the DD-214s showing he was a counter intelligence specialist and officer, and the STRs in service. In addition, the audiologist based his opinion on the Veteran’s own reported date of onset of about a year before the examination, or about 28 years after service. There is no probative evidence to the contrary. The Board notes that the Veteran argued this was incorrect in the VA Form 9, writing, “I have had tinnitus for many more years and never stated that it started so recently.” However, the Veteran still did not provide a date of onset, or even a recollection of tinnitus from the timeframe during service or within one year from discharge.
In sum, the evidence deemed most probative by the Board demonstrates that tinnitus did not manifest during service, during the one year period following discharge, or continuously after separation. Rather, the evidence establishes that the Veteran had normal hearing during service and at separation, and that the first documented tinnitus of record was several decades removed from discharge. The Veteran is competent to report he has tinnitus, but has not provided a specific date of onset during the relevant timeframe. Consequently, service connection for tinnitus is not warranted.
As the more probative evidence establishes that tinnitus is not related to service, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The most probative medical opinion is against the Veteran’s claim. Consequently, the Veteran is not entitled to service connection for tinnitus on any basis.
Increased Rating
1. Evaluation of residuals, status post myocardial infarction with history of coronary artery disease in excess of 30 percent.
A. Rating of Residuals, Status Post Myocardial Infarction
The Veteran’s service connected residuals, status post myocardial infarction with history of coronary artery disease has been evaluated as 30 percent disability from April 1, 2004, including during the entire pendency of this appeal.
Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity.
38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.
Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability rating has been previously staged. Specifically, residuals, status post myocardial infarction with history of coronary artery disease was rated at 100 percent prior to April 1, 2004 and the current 30 percent rating was made effective April 1, 2004, and carried forward through the inception of this appeal.
The Veteran’s disability is evaluated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7006.
Under DC 7006, a 30 percent rating is warranted for a history of myocardial infarction resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 5 METs, but not greater than 7 METs; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.
A 60 percent rating is warranted for a history of myocardial infarction resulting in more than one episode of acute congestive heart failure in the past year; or resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 3 METs, but not greater than 5 METs; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent.
Finally, a 100 percent rating is warranted for a history of myocardial infarction resulting in chronic congestive heart failure; or resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of 3 METs or less; or left ventricular dysfunction with an ejection fraction of less than 30 percent.
For rating diseases of the heart, one MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2.
B. History
By way of history, the Veteran was afforded a November 24, 2004 VA examination. There were impressions of mild concentric left ventricular hypertrophy, mild dilatation left atrium and right ventricle, mild mitral regurgitation, and minimal pericardial effusion. The Veteran’s ejection fraction was 53 percent. An addendum shows the METs level was “8+ as veteran able to do regular activities without cardiac symptoms.”
An August 20, 2013 private treatment record from Carolina East Health System shows that the Veteran underwent an echocardiogram. The left ventricular systolic function was clinically normal. The left ventricular ejection fraction (LVEF) was 55.1 percent.
The Veteran filed the current claim in March 2014.
The Veteran was afforded a January 2015 VA examination. The Veteran had symptoms of dyspnea and fatigue during activity. There was evidence of hypertrophy, as documented from an EKG performed on January 15, 2015. His METs were greater than 7-10. The VA examination shows that this METs level has been found to be consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, jogging (6 mph). The VA examiner indicated that this METs level limitation was solely due to the heart conditions. The VA examiner noted that the Veteran had no change in the diagnosis, and the Veteran’s condition was active. The VA examiner noted that the Veteran had been hospitalized and did not attend the related echocardiogram appointment.
The Veteran was afforded a December 2016 VA examination. The VA examiner identified myocardial infarction and coronary artery disease. The VA examiner opined that the myocardial infarction qualifies within the generally accepted medical definition of ischemic heart disease (IHD). The Veteran was taking metoprolol twice daily and clopidogrel daily. He had experienced a myocardial infarction in 2003. An exercise stress test could not be performed because of the Veteran’s bilateral knee condition. There was no evidence of cardiac hypertrophy, and no evidence of cardiac dilatation. An interview based METs test was performed. The Veteran had fatigue attributable to the cardiac condition. His METs level was found to be greater than 3-5 METs. This METs level has been found to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), brisk walking (4 mph). This METs level limitation provided was not due solely to the heart conditions. The METs level due solely to the cardiac conditions was greater than 7 to 10 METs. This METs level has been found to be consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, jogging (6 mph). The VA examiner provided a rationale:
The veteran is 76 years old and has bilateral knee condition. It was difficult to ascertain from the veteran, how much his cardiac condition was limiting him physically. When asked if he could mow the lawn he stated, “Not all 2.83 acres of it.” When asked what was limiting him from push mowing a small portion of the lawn, he stated, “I think my heart might be an issue”. The veteran’s LVEF was measured at 60.4% on recent 2/3/2017 echocardiogram. Therefore, it is less likely as not that the veteran’s cardiac condition is his limiting factor for physical activity.
The VA examiner then opined that the Veteran’s February 3, 2017 LVEF of 60.4 percent would be considered an accurate and objective measure of the veteran’s cardiac output. Therefore, the VA examiner opined that it was less likely than not, that the fatigue the Veteran claimed during physical activity was due to his cardiac condition.
A private treatment record from Carolina East Physicians from March 13, 2017 shows that the Veteran underwent another EKG. The resting LVEF was gated at 72 percent. Stress ejection fraction was gated at 69 percent.
Additional VA and private treatment records are substantially the same.
In the April 2018 IHP, the Veteran and his representative assert that the correct readings should be from the findings of the January 15, 2015 VA examination showing that the METs level was greater than 7-10 Mets, and the similar reading from the December 29, 2016 VA examination. The Veteran and his representative requested, ‘“the maximum benefit allowed by law and regulation,”’ including, but not limited to, an extra-schedular rating based on the exceptional and unusual symptoms and severity of his service-connected disability.
C. Analysis
Residuals, status post myocardial infarction with history of coronary artery disease was assigned a 30 percent rating effective April 1, 2004, and filed the current claim in March 2014. The 30 percent evaluation contemplates evidence of cardiac hypertrophy on electrocardiogram, with additional symptoms including continuous medication, left ventricular dysfunction with an ejection fraction of more than 50 percent, and workload of greater than seven METs but not greater than ten METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. In order to have a higher evaluation, there must be a history of myocardial infarction resulting in more than one episode of acute congestive heart failure in the past year; or resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 3 METs, but not greater than 5 METs; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent.
The January 2015 VA examination showed that the Veteran’s METs were greater than 7-10. The Veteran was later afforded a December 2016 VA examination. There was no evidence of cardiac hypertrophy, and no evidence of cardiac dilatation. The Veteran had fatigue attributable to the cardiac condition. The METs level due solely to the cardiac conditions listed was greater than 7 to 10 METs. This METs level has been found to be consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, jogging (6 mph). The VA examiner opined, “Therefore, it is less likely as not that the veteran’s cardiac condition is his limiting factor for physical activity.” The VA examiner noted that the Veteran was unable to attend his echocardiogram appointment due to hospitalization. Nevertheless, the contemporary private treatment records from August 20, 2013 show an ejection fraction of 55.1 percent.
Whether measured by the LVEF or by left ventricular dysfunction ejection fraction, the Veteran does not meet the criteria necessary for a higher rating. The private treatment records are consistent with the VA examinations over this period, and provide a clear picture of his symptomatology. The Veteran’s IHP also notes the readings of greater than 7 to 10 METs found at both the January 15, 2015 and December 29, 2016 VA examinations. The Board also notes that the current 30 percent rating was partially based upon evidence of hypertrophy. At the December 29, 2016 VA examination, the VA examiner found no evidence of hypertrophy. Nevertheless, the Board will not disturb the current evaluation.
Here, the most probative evidence are the January 2015 and December 2016 VA examinations presenting a consistent picture of the Veteran’s residuals, status post myocardial infarction with history of coronary artery disease. The Board has applied the highest rating allowed under the rating schedule and the specific rating criteria. The severity of the Veteran’s residuals, status post myocardial infarction with history of coronary artery disease are most closely approximated by the current 30 percent rating. There is no probative evidence to the contrary. Consequently, a rating in excess of 30 percent is not warranted for the entire period on appeal.
D. Additional Considerations
In the April 2018 IHP, the Veteran also requested an extraschedular consideration based on the exceptional and unusual symptoms of his service connected disability. The Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).
According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1) (2017). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating.
With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected residuals, status post myocardial infarction with history of coronary artery disease are inadequate. A comparison between the level of severity and symptomatology of the Veteran’s residuals, status post myocardial infarction with history of coronary artery disease with the established criteria shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology.
The January 2015 VA knee examination found in part, “There are contributing factors of pain, weakness, fatigability and/or incoordination BUT NO additional limitation of functional ability of the knee joint during flareups or repeated use over time.”
Starting in March 2015, ongoing private treatment records from Carolina East Physicians related to lumbago show progress notes for physical therapy and fitness. They show periods of sustained exercise. The Veteran reported being able to perform activities of daily living without assistance.
At the Veteran’s December 2016 VA examination, when asked if he could mow the lawn he stated, “Not all 2.83 acres of it.” When asked what was limiting him from push mowing a small portion of the lawn, he stated, “I think my heart might be an issue.” The Veteran’s LVEF was measured at a significant 60.4 percent on a February 2017 echocardiogram. The VA examiner then opined that the Veteran’s February 3, 2017 LVEF of 60.4 percent would be considered an accurate and objective measure of the Veteran’s cardiac output. The VA examiner therefore opined that it is less likely as not that the Veteran’s cardiac condition is his limiting factor for physical activity. The VA examiner opined that it was less likely than not that the fatigue the Veteran claims during physical activity is due to his cardiac condition. Similarly, his METs level has been found to be consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, jogging (6 mph).
Also at the December 2016 VA examination, the Veteran was not able to perform an exercise stress test because of his bilateral knee condition. The Veteran is not service connected for this condition. The Veteran was found to have fatigue during activity. His METs was found to be consistent with activities such as light yard work, lawn moving, and brisk walking, even factoring in the knee condition. The Board finds this to be highly probative.
The Veteran reports fatigue during physical activity. The Board is of the opinion that the rating schedule measures and contemplates each aspect of the Veteran’s residuals, status post myocardial infarction with history of coronary artery disease, any symptoms of fatigue and findings of hypertrophy. In part, the 30 percent rating already contemplates such factors as a history of myocardial infarction resulting in dyspnea, fatigue, angina, dizziness. While the Veteran’s chief complaint has been fatigue, this has been considered by the VA examiners and in assigning a rating under the diagnostic code. Moreover, even factoring in other disabilities, the Veteran was still found in the December 2016 VA examination to be capable of yard work, lawn mowing, and brisk walking. The ability to perform these types of activities is also completed by the diagnostic code and rating assigned. To the extent the Veteran reports additional impairment, the Board notes other factors.
The Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014).
In this case, the evidence does not indicate that the combined effects of his service-connected disabilities require extraschedular consideration. As such, further consideration of referral to the Under Secretary for Benefits or the Director of Compensation Service for extraschedular consideration on a collective basis is unnecessary. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding “that the Board is required to address whether referral for extraschedular consideration is warranted for a Veteran’s disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities”).
In short, the rating criteria reasonably describe the residuals, status post myocardial infarction with history of coronary artery disease disability level and symptomatology. Consequently, given that the applicable schedular rating criteria are more than adequate in this case, referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims. As such, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REMANDED ISSUE
1. Entitlement to service connection for low back strain with degenerative changes (claimed as herniated nucleus pulposus and back condition) is remanded.
The Veteran and his representative assert that VA has a duty to assist by providing a VA examination. They note that The U.S. Court of Veterans Appeals has held that a Veteran must be afforded a through contemporaneous medical examination, one which takes into account prior medical records so that the evaluation of the claimed disability will be a fully informed one. The last VA examination was in April 1987, and showed no present disability. Since then, considerable private and VA treatment records have been associated with the claims file. They show present back disability. There is still no nexus to service. In light of this new evidence, a VA examination is warranted to assist the Veteran in fully developing his claim. 38 U.S.C § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
This matter is REMANDED for the following action:
1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder.
2. Please schedule the Veteran for a VA examination to determine the nature and etiology of any lower back disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. Attention is directed to the STRs showing a back injury and related treatment from approximately May 1979 to July 1979.
The examiner should provide a rationale for all opinions expressed.
3. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC).
MICHAEL A. PAPPAS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel